The Free Flow of Information Act of 2006

A brief analysis by The Reporters Committee for Freedom of the Press

The Reporters Committee for Freedom of the Press is cautiously backing the shield bill introduced today by Sen. Richard Lugar (R-Ind.) and Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee. This bill does not provide an absolute privilege protecting reporters from being compelled to reveal their confidential sources, and does not recognize the need for a privilege for other, non-confidential newsgathering work product, both of which are important to a good shield law. However, the bill would give journalists a greater degree of protection in federal courts than they enjoy today, and any protection is helpful as reporters face inquiries and subpoenas from federal authorities at a rate that is almost unprecedented. It also clearly applies the privilege to journalists' records held by e-mail providers and phone companies, which is an improvement over the law in every federal circuit.

Journalists who still rightly believe that the First Amendment recognizes their role as independent watchdogs on the exercise of government power and therefore gives them the right to keep confidential sources secret will have to -- as they do now in the absence of a federal shield law -- be willing to engage in the civil disobedience of going to jail to protect their sources and maintain their independence.

(Executive Director's note, 11/20/2009: The Reporters Committee does not encourage journalists to defy court orders and face contempt if they do not prevail in subpoena battles. The above paragraph was meant to state the obvious -- if a reporter loses a bid to quash a subpoena, after arguing under either a shield law or the First Amendment, the consequence of not revealing the subpoenaed information would be a contempt citation.)

A short history

Dozens of reporter's privilege bills were introduced in Congress immediately following the Supreme Court's 1972 decision in Branzburg v. Hayes, which rejected reporters' claims of privilege protecting the identities of sources. Sixty five bills were introduced in the 93rd Congress, and at least 102 bills were introduced in the 5 years after Branzburg.

Sen. Sam Ervin Jr., who presided over subcommittee hearings concerning shield legislation in those post-Branzburg years, wrote that the chief reason that Congress did not enact a shield law in that time was flagging support from the news media after it became evident that an absolute privilege was politically impossible. Journalists were unwilling to support a law with a qualified privilege, feeling that a balancing of interests would destroy predictability and could lead to greater legislative regulation of the press. In addition, the willingness of courts to find a qualified privilege in the Branzburg decision and a greater level of restraint exercised by prosecutors "served to muffle the hue and cry in Congress," Ervin said.

Many journalists never supported shield legislation in the first place, preferring to rely on the First Amendment. And, as Ervin noted, the First Amendment argument was working. Courts, noting that Branzburg was only directly relevant to grand jury cases, often examined the opinion of the four dissenters, along with the concurring opinion by Justice Lewis Powell. As a result, courts in nearly every federal circuit soon recognized some form of a reporter's privilege.

But in the last decade, the tide has turned, and federal courts have almost consistently rolled back the protections they once recognized, perhaps most notably in the Fifth Circuit's 2001 unpublished decision to almost casually uphold the jailing of author Vanessa Leggett -- not because of any argument that she wasn't a journalist, but because of a lack of support for the very idea of a journalist's privilege, regardless of whether the information involved was confidential or not.

The most recent attempt to enact a federal shield law began as then-New York Times reporter Judith Miller and Time magazine reporter Matt Cooper faced jail for refusing to testify about discussions with White House officials related to the disclosure of the name of CIA operative Valerie Plame. In February 2005, early in the 109th Congress, reporter's shield bills were introduced in the House and Senate for the first time since 1983. The House bill, H.R. 3323 (originally H.R. 581), was sponsored by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.).

S. 1419 (originally S. 340) was subsequently introduced by Sen. Richard Lugar (R-Ind.), and was identical to the Pence-Boucher bill. Sen. Chris Dodd (D-Conn.) also introduced a reporter's shield bill (S. 369) while also signing on as a co-sponsor of the Lugar bill. Dodd had also introduced a bill late in the previous Congress, but no action was taken.

The Pence-Boucher and Lugar bills would provide a near-absolute privilege for the protection of confidential sources, with an exception only in cases of an "imminent threat to the national security." In addition, non-confidential information was given a qualified privilege, which could be overcome by clear and convincing evidence that (1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the federal government that has the power to issue a subpoena; (2) the news or information could not be obtained by any alternative means; and (3) there is an overriding public interest in the disclosure.

Senate hearings were held by Sen. Specter's Judiciary Committee in July and October, 2005. Reporters and editors, including Cooper and Miller, testified in favor of the bills, while the Justice Department made its opposition clear to almost any variation of a shield law. At the first hearing, Deputy Attorney General James B. Comey said in written testimony to the committee that protecting journalists from testifying before grand juries or being subpoenaed for their notes or other material would be "bad public policy."

Action was delayed as the committee dealt with the Supreme Court nominations of John Roberts and Samuel Alito, but Specter let it be known that he was interested in drafting a modified bill, which he has now introduced with Sen. Lugar.

The Specter bill

The bill is fairly short, and consists of ten sections. After brief sections giving it a title ("Free Flow of Information Act of 2006") and stating its purpose ("to guarantee the free flow of information to the public through a free and active press as the most effective check upon government abuse, while protecting the right of the public to effective law enforcement and the fair administration of justice"), Section 3 offers definitions, most notably of a "journalist":

The objectionable part of the definition is its limitation to those who make money at practicing journalism, which has never been a requirement since the time of the "lonely pamphleteer" who made his political views known for no other reason than to participate in the democratic process. The definition could be helpful to freelancers, but seems to completely eliminate protection for student journalists. Some state shield laws also have narrow definitions -- for instance, the District of Columbia, New York and Florida shield laws apply to "professional" journalists or journalism; the Delaware shield applies to those earning their "principal livelihood" in journalism or "in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours" engaged in newsgathering. But more states leave the definition of journalist rather vague or do not define it at all, which, for better or worse, transfers the power to determine who is or is not covered to the courts.

Section 4 defines the scope of the privilege when a subpoena has been issued by federal prosecutors in criminal proceedings. When a journalist has gathered information under a promise of confidentiality, the privilege can only be overcome when the prosecutors show by "clear and convincing evidence" that, among other things, alternative sources have been exhausted, and nondisclosure would be "contrary to the public interest" -- which is determined by considering "both the public interest in compelling disclosure and the public interest in newsgathering and maintaining a free flow of information to citizens." In addition, there must be independent grounds to believe that a crime has occurred and that the information is "central" to the case. The bill also requires that the subpoenaing party give reasonable and timely notice, that if possible the subpoena does not seek a large volume of material and only seeks to verify something that was published, and that the information sought is not "peripheral, nonessential or speculative."

Section 5 defines the privilege when a subpoena has been issued by a defendant in a criminal proceeding. The defendant, like a prosecutor, also is required to show by clear and convincing evidence that: alternative sources of the information have been exhausted; there are independent grounds to believe that the information is directly relevant to the question of guilt or innocence or critical to the sentencing phase; that the information sought is not "peripheral, nonessential or speculative"; and again, that nondisclosure would be contrary to the public interest, this time taking into account the defendant's interest in a fair trial.

Section 6 defines the privilege in civil cases, which is similar to the criminal context. The privilege for confidential sources and information can be overcome only if, among other things, alternative sources have been exhausted, the information is central to the litigation, and nondisclosure would be contrary to the public interest.

The public interest in compelling a journalist to testify in civil litigation -- actions usually between private parties -- is substantially less than in criminal prosecutions. Many state shield laws and court decisions specifically note this difference (New Jersey provides an absolute privilege in civil cases but only a qualified one in criminal cases), while the Specter bill does not. But because of the public interest consideration at the heart of this privilege, presumably journalists would be able to make their case for nondisclosure much more easily in this context. In other words, again, the bill could be better, but the wording should allow for the greater protection journalists need here.

Section 7 creates an "eyewitness" exception which would allow a subpoena when the journalist is a witness to a crime or is engaged in a criminal act or tortious conduct -- acts that violate a person's rights for which they could sue -- but notably first requires exhaustion of alternative sources and disallows this exception when the illegal act witnessed is the revealing of the documents or information at issue. Both of these qualifiers are improvements over the typical eyewitness exception found in many state shield laws, or even read into an otherwise-silent statute by courts.

Section 8 creates an exception to the privilege when the information is "reasonably necessary to stop or prevent reasonably certain (i) death or (ii) substantial bodily harm." Exceptions like this are generally only troublesome when courts allow prosecutors or litigants to expand the "reasonable" limits of the exception.

Section 9 creates a national security exception. The privilege can be overcome when there is clear and convincing evidence that disclosure "(i) is necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security, and (ii) the value of the information that would be disclosed clearly outweighs the harm to the public interest and the free flow of information that would be caused by compelling the disclosure." A second provision in this section related to leaks of classified information allows the privilege to be overcome when "(i) such unauthorized disclosure has seriously damaged the national security, (ii) alternative sources of the information identifying the source have been exhausted, and (iii) the harm caused by the unauthorized disclosure of properly classified Government information clearly outweighs the value to the public of the disclosed information."

Some sort of a national security exception almost certainly must appear in a shield law to gain passage in Congress, and this may be as good as can be expected. Overcoming the privilege clearly would require an examination of the public interests at stake, which is more protection than any federal circuit appears to currently provide. And requiring those issuing subpoenas in leaks investigations to prove serious damage and to have exhausted alternative sources gives reporters more protection than they have now.

Section 10 specifies that this act would not negate any current laws or court decisions acknowledging or rejecting a privilege for non-confidential information. And since the statute only applies to federal proceedings, it would not affect existing state shield laws.

Applying the Specter bill to current cases and controversies

Although the impetus for much of the effort to create a federal shield law stems from the Valerie Plame investigation and the prosecution of I. Lewis "Scooter" Libby related to that disclosure, the greater danger to reporters is probably coming from other areas, particularly federal agents investigating leaks of national security information and private litigants using the Privacy Act.

The national security cases that show signs of involving reporters (although no subpoenas have been issued at the time of this writing) involve the prosecution of two lobbyists with the American Israel Public Affairs Committee, the revelation of the NSA wiretapping program by New York Times reporters James Risen and Eric Lichtblau, and the exposure of the CIA's secret foreign prisons by Washington Post reporter Dana Priest. The lobbyists' indictment included mentions of giving national security information to reporters; the Justice Department opened a criminal investigation in January on the wiretapping program leaks; and Priest's reporting has prompted leak investigations by the CIA, Justice Department and Congress, and was possibly the reason the CIA fired an employee who reportedly failed lie detector tests over her involvement in the leaks.

In examining whether Risen, Lichtblau and Priest would be protected by the Specter shield law if served with subpoenas, the key issue would be how the second provision in the national security exception -- related to leaks investigations -- applies. Presumably, the investigations that have been going on for several months are meant to satisfy the requirement that alternative sources of the information have been exhausted, although that inquiry depends on just how extensive the questioning of government employees has been. A court would also have to determine whether the disclosures "significantly jeopardized the national security" and whether "the harm caused by such unauthorized disclosure clearly outweighs the value of the disclosed information to the public." Both cases seem perfectly suited to be models of when leaks of classified information do more good than harm; citizens need to know what the administration is doing in the name of the American people if they can satisfy their most basic role in a democracy, and the harm caused by the disclosures is not the "harm" of placing people in danger, but of compromising intelligence programs that would, quite probably, never have been tolerated by the voters and may be illegal. In other words, if federal prosecutors would be able to overcome the privilege in these cases, the national security provision would become the exception that swallows the rule.

The case against former AIPAC lobbyists Steven Rosen and Keith Weissman in federal court in Alexandria, Va., also would provide an interesting test for this privilege. Unlike the secret prison and wiretapping stories, the contacts that the two lobbyists had with reporters did not lead to the disclosure in the press of classified information. And because the case is an espionage investigation of known suspects, not an attempt to thwart an imminent threat or find the identities of leakers, neither part of the national security exemption should apply. The analysis would therefore turn on the applicability of Section 4, subpoenas by prosecutors in criminal trials. (Presumably, the information was given to the reporters under a promise of confidentiality -- otherwise, the shield law would not apply in the first place.)

Clearly, the testimony of the journalists would be "central" to the case against the lobbyists, since they were the parties to whom the information was disclosed. Likewise, it would be hard to argue that there are alternative sources to exhaust, when the known criminal defendants and the reporters were the only people involved in those transactions. The saving element of the privilege for journalists could be the balancing of the public interests at stake. While it seems unlikely that many judges would decide a reporter's right to be free from revealing newsgathering methods and discussions with sources would outweigh the interest in prosecuting an espionage charge, the shield law would at least give the journalists an argument that simply doesn't exist under current law in the Fourth Circuit.

Judges hearing the Privacy Act cases brought by Wen Ho Lee and Steven Hatfill are compelling journalists from a number of major media organizations to disclose their sources. Because a Privacy Act claim is brought as a civil suit, Section 6 would be relevant. And again, it would be the weighing of the public interests at stake that should provide relief for journalists -- the elements requiring exhaustion of alternative sources and that the information be "central" to the case (which are similar to the current standard in the D.C. Circuit, where many of the Privacy Act cases are brought) have been or could be overcome by the litigants if they do enough legwork. The public interest in a Privacy Act case is not substantial -- particularly when the act is being used to punish the release of newsworthy information, which is the opposite of what the act was intended to do. The public interest in the Privacy Act, as made clear in congressional reports at the time of its enactment immediately following the Watergate scandal in 1974, was to "promote governmental respect for the privacy of citizens . . . to prevent the secret gathering of information on people or the creation of secret information systems or data banks on Americans by employees of the departments and agencies of the executive branch. . . . Watergate has thus been the symbolic catalyst of a tremendous upsurge of interest in securing the right of privacy . . . [the administration's acts] show what government can do if its actions are shrouded in secrecy and its vast information resources are applied and manipulated in a punitive, selective, or political fashion." The Privacy Act attempted to protect the privacy of government employees' personnel records, but it clearly wanted this protection to occur as part of a system of open government.

The public interest in letting journalists investigate stories involving alleged spying at Los Alamos (which led to Lee's suit) and the government response to the anthrax mailings (which led to Hatfill's) is unquestionable, even if the information provided by government sources may have turned out to be wrong or overblown.

Comparing the shield bill to the current law in the circuits

The confidential-source protections offered in this bill would be greater than or equal to what is currently available in any federal court -- mainly because even in the circuits that recognize a reporter's privilege for protecting confidential sources, it is always qualified by a balancing test and there is generally not a weighing of the public interests at stake like the one specified in the bill, which should regularly benefit journalists who are reporting on important public controversies.

The strongest protections under the First Amendment may be found in the northeast (the First, Second and Third Circuits stretch from Maine to Delaware), as well as in the west (the Ninth Circuit covers the nine westernmost states, including Alaska and Hawaii). Even in these circuits, the privilege is qualified by a balancing test. While the wording is different, it is difficult to tell whether a court would distinguish between material that is "necessary or critical" (the Second Circuit test) or "central" (the Specter bill) to the case.

Some form of analysis of the competing "interests" exists in many of the circuits. In the Third Circuit, for example, the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. But under the Specter bill, the private interests of the party seeking disclosure should not be enough, however; instead, the party would have to argue that the public interest justifies disclosure. In other words, disclosure must advance a societal interest, not simply help a litigant prevail in a case.

Conclusion

The Specter bill obviously falls far short of the protection that would be provided by the previous bills, but the compromises were made to accommodate political realities; no bill with an absolute privilege would make it out of the Judiciary Committee or pass the Senate.

The bill is not what journalists want or need. So why support it? For one thing, there is little downside to adopting these protections. If they are granted by Congress and therefore subject to its whims and repealed one day, reporters are in no worse position than they are now.

The bill is not likely to lead to "licensing" of journalists, always a legitimate concern and a valid worry. But licensing is offensive because it gives the government the right to decide who can practice a trade, and to punish those who violate standards of conduct. No such threat is available here. The bill's definition of a "journalist" is purposely general enough to encompass those who are genuinely engaged in the business of newsgathering. It could definitely be better; it could more clearly include within that definition student journalists, freelance writers, and others who engage in journalism in what is not a traditionally "professional" scenario, such as many Internet-only journalists who are doing important work.

By its very terms, this bill does not eliminate any of the existing protections defined by courts or state legislatures for confidential or non-confidential sources or materials. And the requirement that the public interest in disclosure be weighed against the public interest in newsgathering is also important.

The requirement of "clear and convincing" evidence is important, too. Prosecutors should not, under this standard, be able to claim a generalized interest in "protecting national security" to overcome a reporter's rights.

And the lesson from the states is that shield laws work -- the procedural protections they afford let litigants know they cannot always subpoena any materials, but instead must make specific showings of need and relevance.

While there are weaknesses to the Specter bill, it is clear that there will be little opportunity to seek amendments. Those who follow the Hill know that there is a narrowing window of opportunity to get any measure considered on the Senate floor, and the consensus seems to be that markup sessions will slow this bill down enough to keep it from the floor in this congress. Any action next year, in a new congress, would be on a slower track, and would not pass in time to be relevant to many of the cases and controversies facing journalists today.